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New EAT Case on Whether On-Call or Standby Time may be Working Time

There are special rules relating to the National Minimum Wage dealing with time spent “on call” or on “standby” outside normal working hours, or overnight when they are permitted to sleep on or off an employer’s premises, but are otherwise available for work when required. Workers have been held to be working (and therefore entitled to the minimum wage) while relaxing at home, or even while sleeping.

In the recent EAT case of Esparon t/a Middle West Residential Care Home v Slavikovska, an employee was found to be entitled to be paid the national minimum wage for each hour of an overnight sleepover shift in a residential care home.

Facts

S was a care assistant. She was paid an hourly rate for her day shifts. She was also required to undertake sleep-in duty at night for when she was paid £25 per 10 hour shift. S claimed that she had carried out a variety of duties during the night and had not been allowed to sleep and in any event she was entitled to be paid simply for being present at the residential home as this was a statutory requirement to have staff available on the premises at all times. The employer argued that she was able to sleep and was merely on call and this came under the exception in the national minimum wage legislation and they were not obliged to pay her the national minimum wage.

Decision

In this case the EAT looked at why S was on the premises and were satisfied that she was engaged in time work and should be paid the national minimum wage. She did actually perform work during these shifts and she was also being paid to be on the premises as it was a statutory requirement to have a suitable person on the premises “just in case”.

Comment

Whether an individual is entitled to be paid the national minimum wage for being “on call” or “standby” relates to various factors which depend on the individual circumstances of each case. However, if there is a statutory requirement for a worker to be on the premises at a particular time then this is a powerful indicator that they should be entitled to the national minimum wage, regardless of whether any other duties were carried out.

*Disclaimer: While everything has been done to ensure the accuracy of the contents of this article, it is a general guide only. It is not comprehensive and does not constitute legal advice. Specific legal advice should be sought in relation to the particular facts of a given situation.*

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